Search form

Is Obama Abusing the Constitution to Combat ISIS?

Barack Obama takes the Constitution very seriously, he’ll
have you know. “I’ve studied the Constitution as a
student, I’ve taught it as a teacher,” he proclaimed shortly after his inauguration, in a
speech full of passive-aggressive potshots at President
Bush’s “deciderist” approach to executive power.
“I took an oath to preserve, protect and defend the
Constitution,” Obama said, “we must never, ever, turn
our back on its enduring principles for expedience sake.”

One of those enduring principles is reflected in the
Constitution’s allocation of war powers: “in no part of
the Constitution is more wisdom to be found, than in the clause
which confides the question of war or peace to the legislature, and
not to the executive department,” Madison wrote in 1793. Were
it otherwise, “the trust and the temptation would be too
great for any one man.”

If Obama ever respected that principle, he grew out of it as he
“grew in office.” Even before the current debacle in
Iraq, the president’s record on war powers was one of legal
sophistry in the service of raw power—an object lesson in why
you should never let constitutional-law professors near the
Oval Office. But now, he appears poised to plumb new
depths.

Is the increased threat
of ISIS a justifiable reason to increase executive power? Or is the
president going too far?

In his nationally televised address Wednesday night,
the president announced that “we will degrade, and ultimately
destroy” ISIS with “a systematic campaign of
airstrikes,” that will likely include targets in Syria, will
definitely require new boots on the ground, but will certainly not
drag us “into another ground war in Iraq,” don’t
worry. Our “kinetic military action” in Libya was
supposed to last “days, not weeks,” but the
administration is making no such promises this time—the fight
against ISIS
may take years.

Still, “I have the authority to address the threat,”
Obama maintained, with or without new authorization from Congress.
Where does the president suppose that authority lies?

It can’t be found in Article II. That article’s
commander-in-chief clause, as Hamilton explained in Federalist
69, just makes the president “first General and
admiral” of America’s armed forces—and generals
and admirals don’t get to decide whether and with whom we go
to war. And, contra John Yoo,
the legal architect of Bush’s Terror Presidency, unilateral
warmaking authority can’t be conjured out of the penumbras
and emanations of Article II, Sec. 1’s grant of “the
executive power.” Virtually no one from the Founding era
seems to have understood the clause in that way. As Professor
Michael Ramsey puts it:

“Every major figure from the founding era who
commented on the matter said that the Constitution gave Congress
the exclusive power to commit the nation to hostilities. Notably,
this included not only people with reservations about presidential
power, such as James Madison and Thomas Jefferson, but also strong
advocates of the President’s prerogatives, such as George
Washington and Alexander Hamilton.”

“The President does not have power under the
Constitution to unilaterally authorize a military attack in a
situation that does not involve stopping an actual or imminent
threat to the nation.”

That’s not the situation we’re in, by the
president’s own admission: “we have not yet detected
specific plotting against our homeland,” he said Wednesday,
but “if left unchecked, these terrorists could pose a growing
threat beyond that region—including to the United
States.”

President Obama’s case for preventive war with ISIS,
ironically enough, takes a page from President Bush’s
2002 National Security Strategy: “America
will act against such emerging threats before they are fully
formed.” (NB: If the threat’s not “fully
formed,” that means you have time to go to Congress for a
vote.)

On Tuesday, the Washington Post
reported that “the White House’s belief that it has
authority to act is based on the reports Obama has filed with
Congress under the War Powers Act and the earlier congressional
authorization for the war in Iraq.” But by Wednesday, on the
eve of the president’s nationally televised address, a
“senior administration official”
averred that the real source of the president’s authority is
the post-9/11 AUMF, adopted three days after the terror attacks in
2001, and now going on its lucky 13th year.

Any port in a storm, it seems: the rationales—and the
administration’s preferred AUMFs—are shifting rapidly
here. But let’s take each of those arguments in turn.

The War Powers Resolution

The formal opinion Obama’s Office of Legal Counsel
released in 2011 on the president’s “Authority
to Use Military Force in Libya” argues that
“Congress itself has implicitly recognized this presidential
authority” for committing U.S. forces to hostilities abroad
in the 1973 War Powers Resolution. Obama isn’t the
first president to argue that the WPR gives the president a 60- to
90-day “free pass” for warmaking without congressional
authorization. But it’s an argument that won’t survive
a good-faith reading of the WPR’s text.

But good-faith readings of statutory text have never been this
administration’s strong suit. In order to continue bombing
Libya past the WPR’s 60-day limit, it famously advanced the argument that dropping bombs
didn’t constitute “‘hostilities’ envisioned
by the War Powers Resolution.”

The Iraq War Resolution

And now, apparently, they’re torturing the text of the
2002 Iraq War Resolution in the hopes it will yield legal authority
for a new war against a different enemy, more than a decade later.

Obama’s predecessor tried a similar trick in the run-up to the Iraq
War. Before seeking new authorization to attack Iraq, Bush
administration officials floated the argument that the
congressional resolution that authorized Gulf War I in 1992 still
had enough life left in it to support Gulf War II. Then, as now,
that argument was too cute by half.

The 2002 resolution that the Obama Team invokes for a 2014 war
is helpfully titled, “Authorization for Use of Military Force
Against Iraq Resolution of 2002,” and its operative
clause reads, “the President is authorized to use the Armed
Forces of the United States as he determines to be necessary and
appropriate in order to… defend the national security of the
United States against the continuing threat posed by
Iraq.”

But what the president described Wednesday night isn’t a
war “against Iraq” or “the continuing threat
posed by Iraq.” Iraq’s ramshackle, Shiite-led
government is part of our “Coalition of the Willing”
here. Along with the bombing, we’ll “support Iraqi …
forces with training, intelligence and equipment,” Obama
said, and “support Iraq’s efforts to stand up National
Guard Units.” (When they stand up, we will stand down.)

As Brookings’ Wells Bennett points out, the language and structure of the
2002 AUMF point to “a narrower congressional intent”
aimed at addressing “government action” by the Saddam
Hussein regime. It doesn’t read like a delegation in
perpetuity to wage war against any potential threat emerging from
the geographical region, loosely defined.

The 2001 AUMF

Perhaps that’s why the administration now appears to be
relying on the more broadly worded AUMF Congress passed three
days after the terror attacks on September 11, 2001. That
resolution empowers the president to use “all necessary and
appropriate force against those nations, organizations, or persons
[who] planned, authorized, committed, or aided” the 9/11
attacks and those who “harbored” the perpetrators.

The “senior administration official”
quoted Wednesday begs to differ. He argues that ISIS’
“longstanding relationship with al-Qa’ida (AQ)… its
long history of conducting, and continued desire to conduct,
attacks against U.S. persons and interests, … and ISIL’s
position—supported by some individual members and factions of
AQ-aligned groups—that it is the true inheritor of Usama bin
Laden’s legacy” all mean that the president needs no
further authorization to wage war on ISIS—they’re
covered by the 2001 AUMF.

Which part, exactly? Did ISIS plan or aid the 9/11 attacks, or
are they “harbor[ing]” a group that excommunicated
them? Does this “true inheritor” theory suggest that
the AUMF no longer authorizes war with AQ, since they’re no
longer the legitimate heirs to their own legacy? And what does any
of this have to do with the actual language of the resolution?

A few years back, a group of waggish investors (who
understandably preferred to remain anonymous) set up a billboard in
Minnesota featuring a smiling President Bush and the logo “Miss Me Yet?” Well, for my part, not
yet—but there’s something to be said for the honest
insolence of 43’s “I do what I want” approach to
presidential war powers. If we’re going to end up in the same
place, why not take the direct route?

Gene Healy is
vice president of the Cato Institute and author of The Cult of the
Presidency: America’s Dangerous Devotion to Executive Power. He
holds a BA from Georgetown University and a JD from the University
of Chicago Law School.